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Terrorism Bill

My Lords, I am pleased that the Government have produced a legislative framework for dealing with the terrorist threat in this Bill. There is a very large part of the Bill with which I am entirely happy and in sympathy. I want to concentrate on one element of the Bill, which has just been mentioned: the issue of intention and recklessness. I want to use that as a way of teasing out some issues about the compatibility of that clause with the Human Rights Act, which has not been mentioned so far. I was grateful for the advice of the noble Lord, Lord McNally, that to be called liberal was a term of abuse in the New Labour lexicon. I have been a member of the Labour Party for about 45 years and I have always regarded myself very definitely as a lower-case liberal. As such, I think the Human Rights Act, in incorporating many of the Convention Rights, does embody a form of liberalism in that broadest sense. It is important for me, and for the Government, who are supposed to legislate in accordance with the requirements of the Human Rights Act—there is a declaration on the face of the Bill that the Bill is compatible with Convention rights—this should be looked at in some detail, as of course it will be by the Joint Committee on Human Rights. The other constraint on the Government’s legislative intention is, as the noble Minister made clear, the Council of Europe’s Convention on Terrorism, which the Government signed and wish to ratify. The Bill, if it is to become an Act in its present form, will have to compatible both with the Human Rights Act and the European Council convention. I want to concentrate on the issue of intention and recklessness. I begin by going back the Home Secretary’s Statement to the House of Commons on 20 July. He said:"““The proposal targets those who, although not directly inciting, glorify and condone terrorist acts, knowing full well that the effect on their listeners will be to encourage them to turn to terrorism. So, indirect incitement, when it is done with the intention of inciting others to commit acts of terrorism—that is an important qualification—will become a criminal offence””.—[Official Report, Commons, 20/7/05; col. 1254.]" In that Statement to the House of Commons, there were two elements in the Home Secretary’s mind: explicit intention and knowing full well what the effect of what you were saying was supposed to be. That ““knowing full well”” clearly refers to a state of mind on the part of the person making the speech, or doing whatever he was doing. Of course, this is rather different from what has ended up in the Bill, as a number of speakers have said. In the Bill we have, rather, what has come to be called an objective test of recklessness; not ““what is in my mind”” but rather ““how it would be reasonable for me to expect other people to respond to my words””. It is no longer a subjective test; it is a test of what it would be reasonable to presume. So, under the Bill, an offence may be committed either by an intentional action or by objective recklessness. That is very different from what the Home Secretary said on 20 July. My worry is why there has been this shift of ground. It may seem a terribly arcane point, but it is a pretty fundamental shift. The answer given by the Home Secretary is that very few convictions would have ensued from a purely intentional test, as intention would be very difficult to prove, particularly in the case of a denial of intention. Given the importance of intention in so much of law, quite a lot of law would go up in smoke if this, in general, was taken to be true. Juries reach verdicts every day as to whether, on the evidence taken as a whole, an accused person did or did not intend to commit the offence with which he or she is charged. The issue of the accused person’s denial is only one element of that. It seems to me that juries are well equipped to determine whether someone intended to do something. The argument that the question of intention means we will not get enough convictions seems to me to be rather weak. Whether we will get enough convictions if we define an offence one way rather than another seems to me rather the wrong way of looking at an offence. Surely, the important thing is to define the offence as clearly and precisely as we can, and then to prosecute under that clear and precise definition, not to see how far can we broaden the scope or basis of this offence in order to maximise the number of prosecutions? That seems to me to be a very peculiar approach to the whole thing. What worries me is that this may well be incompatible with the Human Rights Act in a very specific way. All these things will be subject to the Convention’s principles of abridgements of freedoms, prescribed by law. I am not at all sure that this objective recklessness test will meet the principle of being prescribed by law because, essentially, whether I have committed an offence under that part of the clause will depend on other people’s reactions to what I have done. I will not know if I have committed an offence until I see how they react; is this compatible with the idea of the rule of law lying behind the notion of something being prescribed by law? I think that is the fundamental issue here. Indeed, the objective recklessness test requires me, in a sense, to predict the behaviour of people who may well be inherently unreasonable: that is why they are about to go out and bomb people. I think the objective recklessness test may well fall foul of the compatibility requirement that is on the face of the Bill. The same would be true of the Convention, which, in two paragraphs of its articles, refers only to intention. It does not say anything about recklessness. If the Government wish to ratify the Council of Europe Convention on Terrorism, which they say they do—and it is all in the Explanatory Notes—they must explain how they can do that, given that the Bill we now have is rather different from what the Home Secretary suggested on 20 July. The basis of the offence has undergone a very big change. Even though it might look an arcane point, it is an exceptionally large change.